Madras High Court
Renganayaki And Another vs K.R. Renganatha Mudaliar on 14 December, 2000
Equivalent citations: (2001)1MLJ212
Author: C. Nagappan
Bench: C. Nagappan
ORDER
1. This appeal is preferred against the judgment of the Subordinate Judge, Arani rendered in O.S.No.27 of 1985 and the question raised herein is one of res judicata.
2. There were two cross suits between the same parties in the Subordinate Judge's Court, Arani. One was for recovery of possession and the other was for declaration and permanent injunction. The possession suit was filed by the respondent herein in O.S.No.27 of 1985 against the appellants herein. The declaration and permanent injunction suit was filed by the first appellant herein in O.S.No.20 of 1986 against the respondent herein.
3. The subject matter of both the suits was a storeyed house and adjoining vacant site. The respondent herein, in his suit, claimed ownership of the suit property by virtue of sale deed dated 19.5.1983 alleged to have been executed by the appellants herein and sought for recovery of possession from them. The first appellant herein, in her suit, asked for a decree declaring the sale deed dated 19.5.1983 as void and inoperative and for permanent injunction restraining the respondent herein from interfering with their possession of the suit property.
4. Both the suits were tried together by the learned Subordinate Judge. Documents were marked in common and the oral evidence was let in common. At the end, the Subordinate Judge decreed the suit for recovery of possession filed by the respondent herein and dismissed the other suit of the first appellant herein for declaration and permanent injunction.
5. The appellants herein preferred only one appeal, i.e., the present appeal, against the decree in the suit for recovery of possession filed by the respondent. The first appellant did not prefer appeal against the decree dismissing her suit for declaration and permanent injunction.
6. Mr.M.N. Padmanabhan, learned Senior Counsel for the respondent herein, raised a preliminary objection as to the maintainability of the appeal on the ground that in the suit filed by the first appellant in O.S.No.20 of 1986, finding that the sale deed dated 19.5.1983 is valid and operative has been given and the suit is dismissed and the first appellant had not appealed against and that finding has become final and it would operate as a bar to a decision in this appeal on merits by the principles of res judicata. In support of this contention, he relied on the decisions of the Supreme Court and this Court.
7. The first decision on which reliance is placed is Lonankutty v. Thomman and another, and in that, the Supreme Court has held as follows:
"Thus, the decision of the District Court rendered in the appeal arising out of the respondents' suit became final and conclusive. That decision, not having been appealed against, could not be reopened in the second appeal arising out of the appellant's suit. The issue whether respondents had the easementary right to the flow of water through the appellant's land for fishing purposes was directly and substantially in issue in the respondents' suit. That issue was heard and finally decided by the District Court in a proceeding between the same parties and the decision was rendered before the High Court decided the second appeal. The decision of the District Court was given in an appeal arising out of a suit, which though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was therefore one in a 'former suit' within the meaning of Section 11, Explanation I C.P. Code. Accordingly, the High Court was in error in deciding an issue, which was heard and finally decided in a 'former suit' and was therefore barred by res judicaia."
8. Following the above decision of the Apex Court, V. Ramaswami, J (as the learned Judge then was) held in S. Kandaswami Chettiar as trustee of Dharmaraja Koil, Arakonam v. R.A. Murugesa Chettiar and another, as follows:
"It may be pointed out that the judgment of the Supreme Court was followed by two of the learned Judges of this Court, one by Shanmukham, J, in Angappa Gounder v. Rajavelu, S.A.No.1612 of 1977, dated 6.2.1981, repotted in 1981 TLNJ 280 and the other by Balasubramanian, J. Khaja Mohideen v. Mohaideen Batcha, . I am also in agreement with the view expressed by the two learned Judges. The appellant not having preferred an appeal against the decree in O.S.No.170 of 1967, the appeal preferred against O.S.No.175 of 1960 is liable to be dismissed on the ground that the finding in O.S.No.170 of 1967 is final and binding on the parties."
9. In the recent decision in Ram Prakash v. Charan Kaur (Smt) and another, , the Apex Court has held as follows:
"2. It would be obvious that since the claims of the petitioner and the respondents have arisen from the same cause of action and the finding of the appellate Court that damages had accrued to the respondents due to misfeasance or malfeasance having been allowed to become final, the decree which is the subject-matter of the special leave petition cannot be assailed. The selfsame question was directly in issue and was the subject- matter of both the suits. The same having been allowed to become final, it cannot be gone into since the same had attained finality, the petitioner having not filed any appeal against the appeal dismissing the suit. In view of this situation, the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11, CPC in the appeal against which the petitioner has filed the second appeal."
10. The above decisions directly apply to the present case. The subject matter of the two suits in the present case was precisely the same. Although the reliefs claimed were different, possession in one suit and declaration and permanent injunction in the other, the question that was directly and substantially in issue in both the suits was whether the sale deed dated 19.5.1983 is valid and it was found to be valid by the learned Subordinate Judge. The first appellant, not having preferred an appeal against the decree in O.S.No.20 of 1986, has preferred this appeal against O.S.No.27 of 1985 and it is liable to be dismissed on the ground that the finding in O.S.No.20 of 1986 is final and binding on the parties.
11. Thus, on the basis of the aforesaid factual as well as legal proposition, it can safely be concluded that where two connected suits have been tried together and the findings recorded in one of the suits have become final, in absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata.
12. For the foregoing reasons, the appeal fails and it is dismissed. There will be no order as to costs.